Hearing in the case is set for Wednesday

By Charlie Brennan

Camera Staff Writer

Posted:
07/03/2014 02:24:38 PM MDT

Updated:
07/03/2014 07:07:48 PM MDT

Jo-El Hartman, left, and Dylan Yates, both of San Diego, smile after obtaining their Colorado marriage license Thursday at the Boulder County Clerk and Recorder's Office. Through the close of business Thursday, the clerk had issued marriage licenses to 105 same-sex couples since June 25. (Jeremy Papasso / Daily Camera)

Colorado Attorney General John Suthers filed suit Thursday seeking to stop the Boulder County clerk from issuing marriage licenses to same-sex couples.

A three-hour hearing on Suthers' request for a temporary restraining order and preliminary injunction has been set for 9 a.m. Wednesday before Boulder District Judge Andrew Hartman.

In a prepared statement, Suthers stated, "Regretfully, our office was forced to take action against Boulder County Clerk Hillary Hall due to her refusal to follow state law.

"While we would prefer not to sue a government official, Ms. Hall's actions are creating a legal limbo for both the state and the couples whose relationships she wants to champion. That limbo could have tangible and unintended consequences."

The motion filed by Suthers in Boulder District Court calls the licenses "false marriage licenses" and alleges that the people of the state will suffer "immediate and irreparable injury, loss or damage" if Hall isn't stopped from "flagrantly violating Colorado law."

Suthers' action caps a tense week in which his office and County Attorney Ben Pearlman, representing Hall's office, discussed but failed to agree on a settlement of their legal differences that was contingent on Hall putting the issuance of licenses on hold by the close of business Tuesday.

Hall refused to do so, declaring, "History will be on our side."

Late Thursday, Hall released a statement that said, "It is unfortunate that our attorney general is continuing to fight this fight instead of following the example of seven other state attorney generals who have refused to enforce their own state's bans in similar situations.

"I believe it is a waste of resources for the attorney general to keep denying people their constitutional right, but that is his prerogative until there is a Supreme Court case squarely addressing the issue."

She added, "I think the least harmful and most sensible solution is to issue marriage licenses and avoid the potential of more civil rights violations while this plays out in court. I hope the court will agree with me."

Hall started issuing marriage licenses to same-sex couples June 25 in the immediate wake of a decision by the 10th U.S. Circuit Court of Appeals that struck down a gay marriage ban in Utah.

Through the close of business Thursday, Hall had issued marriage licenses to 105 same-sex couples.

'The public is left confused and uncertain'

In his motion filed Thursday, Suthers argued, "Each and every day that Clerk Hall continues to issue same-sex marriage licenses — and publicly declare those licenses' validity, despite Colorado's laws and the attorney general's statements to the contrary — greater legal chaos ensues because the public is left confused and uncertain regarding the issued marriage licenses' significance and effect."

Suthers previously had threatened legal action if Hall did not desist, arguing that a coinciding stay issued with the Utah ruling means that the ban remains in effect until the issue is resolved by the U.S. Supreme Court.

Hillary Hall (Courtesy photo)

Hall, however, has maintained that the stay only applied to Utah, and not the other five states in the 10th Circuit. In continuing to issue such licenses, Hall has defied the deadline set by Suthers for her to stop.

University of Colorado School of Law professor Jennifer Hendricks said Suthers' latest move is "not surprising, given what he has been saying publicly" about trying to halt Hall's actions.

Many had thought Suthers might move against Hall in the courts even sooner.

"Maybe his office was looking into what various possible procedures would be," Hendricks said. "I think they had an idea that maybe they could ask the state Supreme Court to take it directly. So maybe they were taking time to look at that."

On Wednesday, Suthers filed a motion in a federal case that was brought on behalf of six same-sex couples earlier this week in U.S. District Court in Denver. That motion stated that his office will not defend Colorado's ban on same-sex marriage but is nevertheless seeking a stay until any pending litigation in the Utah case becomes final.

Disappointment, not surprise, from LGBT advocate

Mari Newman, lead plaintiffs' attorney in the federal case filed in Denver on Tuesday, criticized Suthers for taking Hall to court.

"I think the positions that he is taking are entirely political, and this should not be a political issue," Newman said.

"This is an issue about fundamental rights and equality. This is not an issue that should be politically divisive. This is something where we should all stand together on the side of equality and love."

The attorney general's actions also drew criticism from Mardi Moore, executive director of Out Boulder, which advocates and provides programs and services for the area's LGBT community.

"We're not surprised. However, we're disappointed, in that there have been 23 rulings since DOMA (the federal Defense of Marriage Act) fell that say this ban is unconstitutional," Moore said.

Dylan Yates, 53, and her wife, Jo-El Hartman, were married in California in 2008 but obtained a license in Boulder on Thursday to remarry in Colorado before family members. They plan a ceremony for Sunday in Longmont.

Yates, a writer who is on tour for her novel "The Belief in Angels" and has an appearance at the Boulder Bookstore, said, "If the existence of the Earth were a 24-hour clock, life began 12 minutes ago and human beings, seven minutes ago.

"We only have a little while. Why don't we dance? This is really simple. It's about two people loving one another."

The clerk's office will be closed today and remain closed Monday, reopening with regular hours again Tuesday.

Chad Rendon-Thofson, left, and Michael Rendon-Thofson, both of Denver, sign their marriage license while holding their daughter Sophie, 2, on Thursday at the Boulder County Clerk and Recorder's Office. (Jeremy Papasso / Daily Camera)

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